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Full-Text Articles in Legal History

Does The Second Amendment Protect Firearms Commerce?, David B. Kopel Apr 2104

Does The Second Amendment Protect Firearms Commerce?, David B. Kopel

David B Kopel

The Second Amendment protects the operation of businesses which provide Second Amendment services, including gun stores. Although lower federal courts have split on the issue, the right of firearms commerce is demonstrated by the original history of the Second Amendment, confirmed by the Supreme Court in District of Columbia v. Heller, and consistent with the Court's precedents on other individual rights.


Finding Law, Stephen E. Sachs Jan 2019

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and ...


50 Years Later—The State Of Civil Rights And Opportunity In America, Catherine E. Lhamon Jul 2018

50 Years Later—The State Of Civil Rights And Opportunity In America, Catherine E. Lhamon

Law & Inequality: A Journal of Theory and Practice

Abridged Transcript, The Summit for Civil Rights, November 9, 2017


A Conversation On Learning From The History Of The Civil Rights Movement, Walter F. Mondale Jul 2018

A Conversation On Learning From The History Of The Civil Rights Movement, Walter F. Mondale

Law & Inequality: A Journal of Theory and Practice

Introduction & Abridged Transcript, The Summit for Civil Rights, November 10, 2017


Of Queens, Incubi, And Whispers From Hell: Joan Of Arc And The Battle Between Orthopraxy And Theoretical Doctrine In Fifteenth Century France, Helen W. Tschurr Jun 2018

Of Queens, Incubi, And Whispers From Hell: Joan Of Arc And The Battle Between Orthopraxy And Theoretical Doctrine In Fifteenth Century France, Helen W. Tschurr

Honors Program Theses

This project focuses on examining the nuances of fifteenth century religious gender theory through an exploration of the Trial of Condemnation (unduly maligned in the historiography) against Joan of Arc. Employing a lens of the theological concept of the “Bride of Christ,” (as defined by Dylan Elliot, Johanne Chamberlyne, Gilbert of Hoyland, and Peter Abelard) in studying this text, as well as the contemporary pro-Joan propaganda texts of Christine de Pizan, Jacques Gelu, and Jean Gerson,suggest a departure from current historiographical positions on medieval perceptions of gender and sex identity. Both Joan (in the trial) and her popular supporters ...


The Nuremberg Trials Project At Harvard Law School: Making History Accessible To All, Judith A. Haran Jun 2018

The Nuremberg Trials Project At Harvard Law School: Making History Accessible To All, Judith A. Haran

Journal of Contemporary Archival Studies

This article is primarily a case study of the Nuremberg Trials Project at the Harvard Law School Library in Cambridge, Massachusetts. It begins with an historical note about the war crimes trials and their documentary record, including the fate of the several tons of trial documents that were distributed in 1949. The second part of the article is a description of the Harvard Law School Nuremberg project, including its history, goals, logistical considerations, digitization process and challenges, and resulting impact. The structure and function of the project website is described, followed by a description of a typical user experience, the ...


The Library Of Robert Morris, Civil Rights Lawyer & Activist, Laurel Davis, Mary Sarah Bilder Jun 2018

The Library Of Robert Morris, Civil Rights Lawyer & Activist, Laurel Davis, Mary Sarah Bilder

Boston College Law School Faculty Papers

This article analyzes the Robert Morris library, the only known extant, antebellum, African American-owned library. The seventy-five titles, including two unique pamphlet compilations, reveal Morris’s intellectual commitment to full citizenship, equality, and participation for people of color. The article provides a model for the interpretation of lawyers' libraries.


Eckart Otto, Das Deuteronomium: Politische Theologie Und Rechtsreform In Juda Und Assyrien, Steven W. Holloway Jun 2018

Eckart Otto, Das Deuteronomium: Politische Theologie Und Rechtsreform In Juda Und Assyrien, Steven W. Holloway

Steven W Holloway

No abstract provided.


“Who Will Judge The Many When The Game Isthrough?”: Considering The Profound Differencesbetween Mental Health Courts And “Traditional”Involuntary Civil Commitment Courts, Michael L. Perlin Jun 2018

“Who Will Judge The Many When The Game Isthrough?”: Considering The Profound Differencesbetween Mental Health Courts And “Traditional”Involuntary Civil Commitment Courts, Michael L. Perlin

Seattle University Law Review

For forty years, we have known that involuntary civil commitment hearings are—in most jurisdictions—“charades.” When the Supreme Court noted, in Parham v. J.R., that the average length of a civil commitment hearing ranged from 3.8 to 9.2 minutes, the reaction of many who had done these cases was, “What? So long?!” The characterization of such hearings as being a “greased runway” to a state institution has never been disputed. Lawyers representing these individuals were bored or contemptuous; judges simply wanted to get cases moving; opposing counsel looked at their wrist watches to see when the ...


What Can The Legal Profession Learn From The Medical Profession About The Next Steps?, Dr. Eric Holmboe, Dr. Robert Englander Jun 2018

What Can The Legal Profession Learn From The Medical Profession About The Next Steps?, Dr. Eric Holmboe, Dr. Robert Englander

University of St. Thomas Law Journal

No abstract provided.


After Ten Years: The Carnegie Report And Contemporary Legal Education, William M. Sullivan Jun 2018

After Ten Years: The Carnegie Report And Contemporary Legal Education, William M. Sullivan

University of St. Thomas Law Journal

No abstract provided.


Building On The Professionalism Foundation Of Best Practices For Legal Education, Paula Schaefer Jun 2018

Building On The Professionalism Foundation Of Best Practices For Legal Education, Paula Schaefer

University of St. Thomas Law Journal

No abstract provided.


Mccleskey V. Kemp: Field Notes From 1977-1991, John Charles Boger Jun 2018

Mccleskey V. Kemp: Field Notes From 1977-1991, John Charles Boger

Northwestern University Law Review

The litigation campaign that led to McCleskey v. Kemp did not begin as an anti-death-penalty effort. It grew in soil long washed in the blood of African-Americans, lynched or executed following rude semblances of trials and hasty appeals, which had prompted the NAACP from its very founding to demand “simple justice” in individual criminal cases. When the Warren Court signaled, in the early 1960s, that it might be open to reflection on broader patterns of racial discrimination in capital sentencing, the NAACP Legal Defense & Educational Fund, Inc. (LDF) began to gather empirical evidence and craft appropriate constitutional responses. As that effort built, other deficiencies in state capital states became apparent, and LDF eventually asserted a broader constitutional critique of state capital structures and processes. By 1967, LDF and its allies had developed a nationwide “moratorium” campaign that challenged death sentencing statutes in virtually every state.

Though the campaign appeared poised for partial success in 1969, changes in Court personnel and shifts in the nation’s mood dashed LDF’s initial hopes. Yet unexpectedly, in 1972, five Justices ruled in Furman v. Georgia that all death sentences and all capital statutes nationwide would fall under the Eighth Amendment’s prohibition against cruel and unusual punishments. Each of the nine Furman Justices wrote separately, without a single governing rationale beyond their expressed uneasiness that the death penalty was being imposed infrequently, capriciously, and in an arbitrary manner. Thirty-five states promptly enacted new and revised capital statutes. Four years later, a majority of the Court held that three of those new state statutes met Eighth and Fourteenth Amendment standards. The 1976 Court majority expressed confidence that the states’ newly revised procedures should work to curb the arbitrariness and capriciousness that had earlier troubled the Furman majority.

The McCleskey case emerged from subsequent review of post-Furman sentencing patterns in the State of Georgia. A brilliant and exhaustive study by Professor David Baldus and his colleagues demonstrated that the Court’s assumptions in 1976 were wrong; strong racial disparities in capital sentencing continued to persist statewide in Georgia—especially in cases in ...


Southern Slavery And Antebellum Law: Modifications Suited To The State And Master Class, Steven J. Casement Jun 2018

Southern Slavery And Antebellum Law: Modifications Suited To The State And Master Class, Steven J. Casement

#History: A Journal of Student Research

This paper deals with the complexity of the legal system in the American South during the Antebellum period. The laws put in place by the various Southern states during this era were constructed locally, and were a delicate balance of planters’ property rights, the need for slave regulation, and evangelical desire to defend their own way of life. But, the resulting outcome was the same in each case. The Southern states continuously pushed laws that reinforced the authority of the master with the help of political economists, judges, lawmakers, and of course the master class itself. Therefore, this paper emphasizes ...


Sky Is The Limit: Protecting Unaccompanied Minors By Not Subjecting Them To Numerical Limitations, Deborah S. Gonzalez Esq. Jun 2018

Sky Is The Limit: Protecting Unaccompanied Minors By Not Subjecting Them To Numerical Limitations, Deborah S. Gonzalez Esq.

St. Mary's Law Journal

Abstract forthcoming


Whistleblowers—A Case Study In The Regulatory Cycle For Financial Services, Ronald H. Filler, Jerry W. Markham Jun 2018

Whistleblowers—A Case Study In The Regulatory Cycle For Financial Services, Ronald H. Filler, Jerry W. Markham

Brooklyn Journal of Corporate, Financial & Commercial Law

The Securities and Exchange Commission and the Commodity Futures Trading Commission were directed by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) to create whistleblower protection programs that reward informants with massive bounty payments. At the time of its passage, the Dodd-Frank Act was a highly controversial statute that was passed on partisan lines. Its whistleblowing authority was one of its “most contentious provisions.” As the result of the 2016 elections, the Dodd-Frank Act has come under renewed attack in Congress and by the new Trump administration. The stage is being set for possible repeal of ...


Living The World War - A Retrospective, Donald N. Zillman, Elizabeth Elsbach Jun 2018

Living The World War - A Retrospective, Donald N. Zillman, Elizabeth Elsbach

Maine Law Review

Living the World War is a 1200-page, two volume study of America’s participation in World War I. The week-by-week review tries to place the reader in the position of an American citizen of a century ago who “lived” the War years without knowing what might come next. The authors’ sources are the daily editions of the New York Times and the pages of the Congressional Record—two documents available to the informed citizen of 1916 to 1919. The crucial issues of a century ago have helped shape American law and policy that is relevant today to such issues as ...


Distant Voices Then And Now: The Impact Of Isolation On The Courtroom Narratives Of Slave Ship Captives And Asylum Seekers, Tara Patel Jun 2018

Distant Voices Then And Now: The Impact Of Isolation On The Courtroom Narratives Of Slave Ship Captives And Asylum Seekers, Tara Patel

Michigan Journal of Race and Law

Part I compares the nineteenth century cases of the Antelope and the Amistad to identify why they resulted in different outcomes despite having similar fact patterns. The Antelope concerned the fate of approximately 280 African captives discovered on a slave trade ship upon its interception by a U.S. revenue cutter. Since the slave trade in the United States was illegal at the time, the captives were transported to Savannah for trial through which their status—free or slave—would be determined. After a lengthy trial and appeals process in which Spain and Portugal laid claim to the captives, the ...


Syria Under Pinheiro: Reformulating Syrian Domestic Law For Decentralized Reconstruction, George Somi Jun 2018

Syria Under Pinheiro: Reformulating Syrian Domestic Law For Decentralized Reconstruction, George Somi

Brooklyn Journal of International Law

According to the United Nations High Commissioner for Refugees; since 2011; the Syrian conflict has generated roughly 5.4 million refugees; while approximately 6.5 million people are internally displaced within the country; making it the largest internally displaced population in the world. Rebuilding Syria’s infrastructure; homes; and businesses will be an immense task; with cost estimates ranging between $250–$350 billion USD. The Syrian government and the international community have already started to contemplate postwar reconstruction and even wartime reconstruction; despite the ongoing fighting. This Note operates under the assumption that the Syrian government of President Bashar al-Assad ...


The Architecture Of Law: Building Law In The Classical Tradition, Brian M. Mccall May 2018

The Architecture Of Law: Building Law In The Classical Tradition, Brian M. Mccall

Brian M McCall

The Architecture of Law explores the metaphor of law as an architectural building project, with eternal law as the foundation, natural law as the frame, divine law as the guidance provided by the architect, and human law as the provider of the defining details and ornamentation. Classical jurisprudence is presented as a synthesis of the work of the greatest minds of antiquity and the medieval period, including Cicero, Artistotle, Gratian, Augustine, and Aquinas; the significant texts of each receive detailed exposition in these pages.
Along with McCall’s development of the architectural image, he raises a question that becomes a ...


The Right To An Independent Judiciary And The Avoidance Of Constitutional Conflict: The Burger Court’S Flawed Reasoning In Chandler V. Judicial Council Of The Tenth Circuit And Its Unfortunate Legacy, Joshua E. Kastenberg May 2018

The Right To An Independent Judiciary And The Avoidance Of Constitutional Conflict: The Burger Court’S Flawed Reasoning In Chandler V. Judicial Council Of The Tenth Circuit And Its Unfortunate Legacy, Joshua E. Kastenberg

St. Mary's Journal on Legal Malpractice & Ethics

In 1970, the United States Supreme Court issued Chandler v. Judicial Council of the Tenth Circuit in which five Justices determined that the federal courts of appeals possessed an administrative authority to manage the district court judges within an appellate court’s respective circuit. The decision enabled the Tenth Circuit to decide the fitness of a judge to preside over cases without a formal motion from a litigant. Although Congress had enabled the courts of appeals to oversee basic judicial functions (such as temporarily assigning district court judges to overworked districts), Congress did not intend to grant the power to ...


It’S A Trap! The Ethical Dark Side Of Requests For Admission, Colin Flora May 2018

It’S A Trap! The Ethical Dark Side Of Requests For Admission, Colin Flora

St. Mary's Journal on Legal Malpractice & Ethics

Due largely to an overlap of authority between disciplinary bodies charged with supervising the professional conduct of attorneys and the authority of courts to supervise litigation, the ethical ramifications of routine discovery abuses often pass without comment. That is because disciplinary authorities routinely defer to courts to police litigation behavior despite courts frequently rejecting the role of enforcers of professional rules. A further contributing factor to unethical conduct becoming routine practice in discovery are ill-defined parameters and a dearth of guidance. One tool in particular, requests for admission, has gone overlooked in the literature and caselaw, but poses unique ethical ...


The Significance Of Mongolia's Foreign Policy And Security Apparatus On A Global And Regional Scale, Bolor Lkhaajav May 2018

The Significance Of Mongolia's Foreign Policy And Security Apparatus On A Global And Regional Scale, Bolor Lkhaajav

Master's Projects and Capstones

Mongolia, land-locked between two politically, economically, and militarily powerful nations — Russia and China — often must balance its foreign and security policies with its two neighbors and countries beyond. When discussing Mongolia’s foreign policy and security apparatus, historians and scholars look at the international relations of East Asia as a whole. This is the case not because Mongolia’s foreign policy is insignificant but because greater powers impose greater influence on smaller states. Mongolia’s partial involvement in World War II (WWII), and the Cold War introduced new challenges as well as opportunities for Mongolia to modernize its foreign policy ...


Death In America Under Color Of Law: Our Long, Inglorious Experience With Capital Punishment, Rob Warden, Daniel Lennard May 2018

Death In America Under Color Of Law: Our Long, Inglorious Experience With Capital Punishment, Rob Warden, Daniel Lennard

Northwestern Journal of Law & Social Policy

No abstract provided.


Interpretation As Statecraft: Chancellor Kent And The Collaborative Era Of American Statutory Interpretation, Farah Peterson May 2018

Interpretation As Statecraft: Chancellor Kent And The Collaborative Era Of American Statutory Interpretation, Farah Peterson

Maryland Law Review

No abstract provided.


An Evaluation Of Historical Evidence For Constitutional Construction From The First Congress' Debate Over The Constitutionality Of The First Bank Of The United States, Lee J. Strang May 2018

An Evaluation Of Historical Evidence For Constitutional Construction From The First Congress' Debate Over The Constitutionality Of The First Bank Of The United States, Lee J. Strang

University of St. Thomas Law Journal

No abstract provided.


America's First Great Constitutional Controversy: Alexander Hamilton's Bank Of The United States, Charles J. Reid May 2018

America's First Great Constitutional Controversy: Alexander Hamilton's Bank Of The United States, Charles J. Reid

University of St. Thomas Law Journal

No abstract provided.


The Jeffersonian Republicans Vs. The Federalist Courts, Kevin R. C. Gutzman May 2018

The Jeffersonian Republicans Vs. The Federalist Courts, Kevin R. C. Gutzman

University of St. Thomas Law Journal

No abstract provided.


The Supreme Court Before John Marshall, Scott Douglas Gerber May 2018

The Supreme Court Before John Marshall, Scott Douglas Gerber

University of St. Thomas Law Journal

No abstract provided.


Race, Slavery, And Federal Law, 1789-1804: The Creation Of Proslavery Constitutional Law Before Marbury, Paul Finkelman May 2018

Race, Slavery, And Federal Law, 1789-1804: The Creation Of Proslavery Constitutional Law Before Marbury, Paul Finkelman

University of St. Thomas Law Journal

No abstract provided.